Unassociated Document
Filed
pursuant to Rule 424(b)(3)
Registration
No. 333-147802
PROSPECTUS
3,706,664
SHARES
ADVANCED
PHOTONIX, INC.
CLASS
A COMMON STOCK
This
prospectus relates to the resale of up to 3,706,664 shares of our Class A common
stock, $.001 par value, including 741,332 shares issuable upon exercise of
warrants, by the selling stockholders identified in this prospectus or their
transferees from time to time. We are not offering or selling any of our Class
A
common stock pursuant to this prospectus. We will not receive any of the
proceeds from the sale of the shares by the selling stockholders. We will not
be
paying any underwriting discounts or commissions in this offering.
The
selling stockholders identified in this prospectus, or their pledgees, donees,
permitted transferees or other successors-in-interest, may offer the shares
from
time to time through public or private transactions at prevailing market prices,
at prices related to prevailing market prices or at privately negotiated
prices.
We
do not
know when or in what amount a selling stockholder may offer shares for sale,
including whether a selling stockholder will sell any or all of the shares
offered by this prospectus. If all of the warrants were exercised by the selling
stockholders, we would receive $1,371,464.
Our
Class
A common stock is traded on the American Stock Exchange under the symbol “API.”
On November 26, 2007 the average of the high and low prices of a share of our
Class A common stock as reported on the American Stock Exchange was
$1.74.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning
on page 5 of this prospectus.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION
HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The
date
of this prospectus is December 7, 2007
TABLE
OF CONTENTS
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PAGE
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|
Cautionary
Statements Regarding Forward-Looking Statements
|
2
|
|
About
This Prospectus
|
2
|
|
Prospectus
Summary
|
3
|
|
The
Offering
|
4
|
|
Risk
Factors
|
5
|
|
Use
Of Proceeds
|
10
|
|
Selling
Stockholders
|
11
|
|
Plan
Of Distribution
|
13
|
|
Description
Of Securities Of The Registrant
|
16
|
|
Legal
Matters
|
16
|
|
Experts
|
16
|
|
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16
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CAUTIONARY
STATEMENTS REGARDING
FORWARD-LOOKING
STATEMENTS
We
believe it is important to communicate our expectations to investors. However,
there may be events in the future that we are not able to accurately predict
or
that we do not fully control that could cause actual results to differ
materially from those expressed or implied. This prospectus and the documents
incorporated by reference in this prospectus may contain forward-looking
statements made pursuant to the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. Such statements are subject to certain factors,
risks and uncertainties that may cause actual results, events and performances
to differ materially from those referred to in such statements. These risks
include statements that address operating performance, events or developments
that we expect or anticipate will occur in the future, such as projections
about
our future results of operations or our financial condition, research,
development and commercialization of our product candidates, anticipated trends
in our business, manufacture of sufficient and acceptable quantities of our
proposed products, our strategies to grow the company, and other risks that
could cause actual results to differ materially. The forward-looking statements
are based on information available to us on the date hereof, and we assume
no
obligation to update any such forward-looking statements.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or the SEC, utilizing a “shelf” registration process or
continuous offering process. Under this shelf registration process, the selling
stockholders may, from time to time, sell the securities described in this
prospectus in one or more offerings. This prospectus provides you with a general
description of the securities that may be offered by the selling stockholders.
Each time a selling stockholder sells securities, the selling stockholder is
required to provide you with this prospectus and, in certain cases, a prospectus
supplement containing specific information about the selling stockholder and
the
terms of the securities being offered. That prospectus supplement may include
additional risk factors or other special considerations applicable to those
securities. Any prospectus supplement may also add, update, or change
information in this prospectus. If there is any inconsistency between the
information in this prospectus and any prospectus supplement, you should rely
on
the information in that prospectus supplement. You should read both this
prospectus and any prospectus supplement together with additional information
described under “Where You Can Find More Information.”
You
should assume that the information in this prospectus is accurate only as of
the
date on the front of this prospectus and that any information we have
incorporated by reference is accurate only as of the date of the document
incorporated by reference, regardless of the times of the delivery of this
prospectus or any sale of the shares of our Class A common stock. You may rely
only on the information contained or incorporated by reference in this
prospectus. Neither we nor any selling stockholder has authorized anyone to
provide you with information different from that contained or incorporated
by
reference in this prospectus. This prospectus is not an offer to sell nor is
it
seeking an offer to buy the shares of our Class A common stock being offered
hereby in any jurisdiction where the offer or sale is not permitted.
PROSPECTUS
SUMMARY
This
summary contains basic information about us and the resale by the selling
stockholders of our Class A common stock. Because it is only a summary, it
does
not contain all of the information that you should consider before purchasing
our Class A common stock. You should read this entire prospectus, including
the
information set forth under “Risk Factors” and the information incorporated by
reference in this prospectus. As used in this prospectus, and unless the context
indicates otherwise, the terms “our company,” “we,” “our,” and “us” refer to
Advanced Photonix, Inc., including its consolidated
subsidiaries.
Our
Company
We
are a
leading supplier of custom opto-electronic solutions, high-speed optical
receivers and Terahertz sensors and instrumentation, serving a variety of global
OEM markets. Our optoelectronic solutions are based on our silicon Large Area
Avalanche Photodiode (LAAPD), PIN (positive-intrinsic-negative) photodiode
and
FILTRODE®
detectors. Our patented high-speed optical receivers include Avalanche
Photodiode (APD) technology and PIN photodiode technology based upon III-V
materials, including InP, InAlAs, and GaAs. Our newly emerging Terahertz sensor
product line is targeted to the industrial Non-Destructive Testing (NDT),
quality control, homeland security and military markets. Using our patented
fiber coupled technology and high speed Terahertz generation and detection
sensors, we are engaged in transferring Terahertz technology from the
application development laboratory to the factory floor.
We
support the customer from the initial concept and design of the semiconductor,
hybridization of support electronics, packaging and signal conditioning or
processing from prototype through full-scale production and validation testing.
Our products serve customers in a variety of global markets, typically North
America, Asia, Europe and Australia. The target markets served by us are
Military & Aerospace, Industrial/NDT & Commercial, Medical,
Telecommunications and Homeland Security.
Our
principal executive offices are located at 2925 Boardwalk, Ann Arbor, Michigan
48104, and our telephone number is (734) 864-5600.
The
Private Placement
On
September 14, 2007, we closed the sale of our securities in a private placement
transaction, pursuant to which we sold and issued 741,332 units (including
the
sale of 608,000 units which was completed on September 7, 2007) to a limited
number of “accredited investors,” as defined by Rule 501(a) in the Securities
Act. Each unit consisted of four shares of our Class A common stock and one
warrant to purchase a share of Class A common stock exercisable at $1.85 a
share
or an aggregate of 2,965,332 shares of Class A common stock and 741,332
warrants. The units were immediately separable. The warrants expire on the
fifth
anniversary of the date of grant. The aggregate purchase price paid for the
units was $4,491,560.
Our
Chief
Financial Officer (CFO) and our Chief Technology Officer (CTO) participated
in
the offering purchasing an aggregate of 33,000 units consisting of 132,000
shares of Class A common stock and 33,000 warrants.
In
connection with the private placement, we entered into subscription agreements
with the accredited investors (other than our CFO and CTO) pursuant to which
each agreed to pay a per unit price equal to the fair market value of our Class
A common stock at the closing, provided the price would be no less than $5.72
per unit or greater than $6.00 per unit. We also entered into subscription
agreements with our CFO and CTO pursuant to which each agreed to pay a per
unit
price equal to four times the fair market value of our Class A common stock
at
closing, which resulted in a per unit price of $7.32.
We
also
entered into registration rights agreements with each of the participants
pursuant to which we agreed to register these securities for public resale.
This
prospectus has been prepared, and the registration statement of which this
prospectus is a part, has been filed with the SEC, in order to satisfy our
obligations to the purchasers of these securities.
Accordingly,
this prospectus covers the resale by the selling stockholders of shares of
our
Class A common stock, including shares of our Class A common stock issuable
upon
exercise of the warrants held by the selling stockholders.
THE
OFFERING
|
Class
A common stock offered by the selling stockholders:
|
3,706,664
shares of common stock, par value $.001 per share.
|
| |
|
|
Selling
stockholders:
|
All
the shares of Class A common stock offered by this prospectus are
to be
sold by the selling stockholders listed below.
|
| |
|
|
Class
A common stock outstanding after this offering:
|
23,977,678
shares.
|
| |
|
|
AMEX
symbol:
|
API
|
The
number of shares of our Class A common stock to be outstanding after this
offering is based on the number of shares outstanding as of November 26, 2007
and excludes:
| |
§
|
741,332
shares issuable upon exercise of warrants issued in the September
2007
private placement described above, which are outstanding and have
an
exercise price of $1.85 per share as of November 26, 2007;
|
| |
§
|
a
total of 2,484,000 shares available for future issuance under our
2007
Equity Incentive Plan and a total of 10,000 shares available for
future
issuance under our 2000 Stock Option Plan, in each case as of November
26,
2007.
|
| |
§
|
1,389,082
shares issuable upon exercise of warrants previously issued in connection
with a previous private placement which are outstanding and have
an
exercise price of $1.7444 per share as of November 26, 2007.
|
Investing
in our securities involves risks. You should carefully consider the information
below under “Risk Factors” and the other information included or incorporated by
reference in this prospectus before investing in our securities.
RISK
FACTORS
Investing
in our Class A common stock involves a high degree of risk and uncertainty.
You
should carefully consider the risks and uncertainties described below before
investing in our Class A common stock. Our business, prospects, financial
condition and results of operations could be adversely affected due to any
of
the following risks. In that case, the value of our Class A common stock
could decline, and you could lose all or part of your
investment.
Risks
Relating to Our Business
We
are dependent upon several suppliers for a significant portion of raw materials
used in the manufacturing of our products.
The
principal raw materials we use in the manufacture of our semiconductor
components and sensor assemblies are silicon and III-IV wafers, chemicals and
gases used in processing wafers, gold wire, lead frames, and a variety of
packages and substrates, including metal, printed circuit board, flex circuits,
ceramic and plastic packages. All of these raw materials can be obtained from
several suppliers. From time to time, particularly during periods of increased
industry-wide demand, silicon wafers and other materials have been in short
supply. Any significant interruption in the supply of these raw materials could
have a material adverse effect on our company.
Customer
acceptance of our products is dependent on our ability to meet changing
requirements.
Customer
acceptance of our products is significantly dependent on our ability to offer
products that meet the changing requirements of our customers, including the
military, medical institutions, industrial laboratories, government agencies
and
industrial corporations. Any decrease in the level of customer acceptance of
our
products could have a material adverse effect on our company.
We
are subject to market risk through our sales to overseas
markets.
A
growing
amount of our sales are being derived from overseas markets. These international
sales are primarily focused in Europe and the Middle East. These operations
are
subject to risks that are inherent in operating in foreign countries, including
the following:
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§
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foreign
countries could change regulations or impose currency restrictions
and
other restraints;
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§
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changes
in foreign currency exchange rates and hyperinflation or deflation
in the
foreign countries in which we
operate;
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§
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some
countries impose burdensome tariffs and
quotas;
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§
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political
changes and economic crises may lead to changes in the business
environment in which we operate;
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§
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international
conflict, including terrorist acts, could significantly impact our
financial condition and results of operations;
and
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§
|
economic
downturns, political instability and war or civil disturbances may
disrupt
distribution logistics or limit sales in individual
markets.
|
In
addition, we utilize third-party distributors to act as our representative
for
the geographic region that they have been assigned. These distributors are
responsible for maintaining customer account management and in some cases
maintaining an inventory of products for those customers within their geographic
region. Our success is dependent on these distributors finding new customers
and
receiving new orders from existing customers.
Our
future performance is dependent upon finding new customers and retaining our
existing customers.
Customers
normally purchase our products and incorporate them into products that they,
in
turn, sell in their own markets on an ongoing basis. As a result, our sales
are
dependent upon the success of our customers' products and our future performance
is dependent upon our success in finding new customers and receiving new orders
from existing customers.
In
several of our markets, quality and/or reliability of our products are a major
concern for our customers, not only upon the initial manufacture of the product,
but for the life of the product. Many of our products are used in remote
locations, or higher value assembly, making servicing of our products not
feasible. Any failure of the quality and/or reliability of our products could
have an adverse affect on us and on our ability to maintain or attract
customers.
Customer
orders are subject to cancellation or modification at any
time.
Our
sales
are made primarily pursuant to standard purchase orders for delivery of
products. However, by industry practice, orders may be canceled or modified
at
any time. When a customer cancels an order, they are responsible for all
finished goods, all costs, direct and indirect, incurred by us, as well as
a
reasonable allowance for anticipated profits. No assurance can be given that
we
will receive these amounts after cancellation. The current backlog contains
only
those orders for which we have received a confirmed purchase order and also
includes contracts which have scheduled shipping dates beyond the upcoming
fiscal year. As such, the current backlog represents only a portion of expected
annual revenues for fiscal year 2008.
The
markets for many of our products are characterized by changing
technology.
The
markets for many of our products are characterized by changing technology,
new
product introductions and product enhancements, and evolving industry standards.
The introduction or enhancement of products embodying new technology or the
emergence of new industry standards could render existing products obsolete
or
result in short product life cycles. Accordingly, our ability to compete is
in
part dependent on our ability to continually offer enhanced and improved
products.
We
are dependent on key in-house manufacturing equipment or processes to deliver
a
custom product (solution) with the highest performance and a short time to
market.
We
depend
on key in-house manufacturing equipment and assembly processes. We believe
that
these key manufacturing and assembly processes give us the flexibility and
responsiveness to meet our customer delivery schedule and performance
specification with a custom product. This value proposition is an important
component of our offering to our customers. A loss of these capabilities could
have an adverse effect on our existing operations and new business growth.
Changes
in the spending priorities of the federal government can materially adversely
affect our business.
In
fiscal
year 2007, approximately 22% of our sales were related to products purchased
by
military contractors. Our business depends upon continued federal government
expenditures on defense, intelligence, aerospace and other programs that we
support. In fiscal year 2007, our sales to military contractors declined
slightly. In addition, foreign military sales are affected by U.S. government
regulations, regulations by the purchasing foreign government and political
uncertainties in the U.S. and abroad. There can be no assurance that the U.S.
defense and military budget will continue to grow or that sales of defense
related items to foreign governments will continue at present levels. In
addition, the terms of defense contracts with the U.S. government generally
permit the government to terminate such contracts, with or without cause, at
any
time. Any unexpected termination of a significant U.S. government contract
with
a military contractor that we sell our products to could have a material adverse
effect on our company.
Our
industry is highly competitive and fragmented.
We
compete with a range of companies for the custom optoelectronic and silicon
photodetector requirements of customers in our target markets. We believe that
our principal competitors for sales of custom devices are small to medium size
companies. Because we specialize in custom devices requiring a high degree
of
engineering expertise to meet the requirements of specific applications, we
generally do not compete to any significant degree with other large
United States, European or Pacific Rim manufacturers of standard “off the
shelf” optoelectronic components or silicon photodetectors. We cannot assure you
that we will be able to compete successfully in our markets against these or
any
future competitors.
Our
industry is sensitive to changing economic
conditions.
We
believe that many factors affect our industry, including consumer confidence
in
the economy, interest rates, fuel prices and credit availability. The overall
economic climate or Gross National Product growth has a direct impact on our
customers and the demand for our products. We cannot assure you that our
business will not be adversely affected as a result of an industry or general
economic downturn.
We
are subject to environmental regulations.
The
photonics industry, as well as the semiconductor industry in general, is subject
to governmental regulations for the protection of the environment, including
those relating to air and water quality, solid and hazardous waste handling,
and
the promotion of occupational safety. Various federal, state and local laws
and
regulations require that we maintain certain environmental permits. We believe
that we have obtained all necessary environmental permits required to conduct
our manufacturing processes. Changes in the aforementioned laws and regulations
or the enactment of new laws, regulations or policies could require increases
in
operating costs and additional capital expenditures and could possibly entail
delays or interruptions of operations.
If
we are unable to protect our intellectual property rights adequately, the value
of our products could be diminished.
We
utilize proprietary design rules and processing steps in the development and
fabrication of our PIN photodiodes, APD technology and our THz systems and
sensors. In addition, we have over 100 patents or patents pending utilized
in
our products. There can be no assurance that any issued patents will provide
us
with significant competitive advantages, or that challenges will not be
instituted against the validity or enforceability of any patent utilized by
us,
or, if instituted, that such challenges will not be successful. The cost of
litigation to uphold the validity and to prevent the infringement of a patent
could be substantial and could have a material adverse effect on our operating
results. Furthermore, there can be no assurance that our APD technology will
not
infringe on patents or rights owned by others, licenses to which might not
be
available to us. Based on limited patent searches, contacts with others
knowledgeable in the field of APD technology, and a review of the published
materials, we believe that our competitors hold no patents, licenses or other
rights to the APD technology which would preclude us from pursuing our intended
operations.
In
some
cases, we may rely on trade secrets to protect our innovations. There can be
no
assurance that trade secrets will be established, that secrecy obligations
will
be honored or that others will not independently develop similar or superior
technology. To the extent that consultants, key employees or other third parties
apply technological information independently developed by them or by others
to
our projects, disputes might arise as to the proprietary rights to such
information which may not be resolved in our favor.
We
face strong competition for skilled workers.
Our
success depends in large part on our ability to attract and retain highly
qualified scientific, technical, management, and marketing personnel.
Competition for such personnel is intense and there can be no assurance that
we
will be able to attract and retain the personnel necessary for the development
and operation of our business.
We
may
not be able to successfully integrate future acquisitions, which could result
in
our not achieving the expected benefits of the acquisition, the disruption
of
our business and an increase in our costs.
Over
the
past three years, we have acquired 3 businesses and we continually explore
opportunities to acquire related businesses, some of which could be material
to
us. Our ability to continue to grow may depend upon identifying and successfully
acquiring attractive companies, effectively integrating these companies,
achieving cost efficiencies and managing these businesses as part of our
company.
We
may
not be able to effectively integrate the acquired companies and successfully
implement appropriate operational, financial and management systems and controls
to achieve the benefits expected to result from these acquisitions. Our efforts
to integrate these businesses could be affected by a number of factors beyond
our control, such as regulatory developments, general economic conditions and
increased competition. In addition, the process of integrating these businesses
could cause the interruption of, or loss of momentum in, the activities of
our
existing business. The diversion of management’s attention and any delays or
difficulties encountered in connection with the integration of these businesses
could negatively impact our business and results of operations. Further, the
benefits that we anticipate from these acquisitions may not develop.
Risks
Relating to Our Class A Common Stock
Our
share price has been volatile in the past and may decline in the future.
Our
Class
A common stock has experienced significant market price and volume fluctuations
in the past and may experience significant market price and volume fluctuations
in the future in response to factors such as the following, some of which are
beyond our control:
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§
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quarterly
variations in our operating results;
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§
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operating
results that vary from the expectations of securities analysts and
investors;
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§
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changes
in expectations as to our future financial performance, including
financial estimates by securities analysts and investors;
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§
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announcements
of technological innovations or new products by us or our competitors;
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§
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announcements
by us or our competitors of significant contracts, acquisitions,
strategic
partnerships, joint ventures or capital commitments;
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§
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changes
in the status of our intellectual property rights;
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§
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announcements
by third parties of significant claims or proceedings against us;
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§
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additions
or departures of key personnel;
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§
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future
sales of our ordinary shares; and
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§
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stock
market price and volume fluctuations.
|
Stock
markets often experience extreme price and volume fluctuations. Market
fluctuations, as well as general political and economic conditions, such as
a
recession or interest rate or currency rate fluctuations or political events
or
hostilities in or surrounding the United States, could adversely affect the
market price of our Class A common stock.
In
the
past, securities class action litigation has often been brought against
companies following periods of volatility in the market price of its securities.
We may in the future be the target of similar litigation. Securities litigation
could result in substantial costs and divert management's attention and
resources both of which could have a material adverse effect on our business
and
results of operations.
Future
sales of our Class A common stock in the public market could lower our stock
price, and conversion of our warrants and any additional capital raised by
us
may dilute your ownership in the Company.
We
may
sell additional shares of Class A common stock in subsequent offerings. In
addition, holders of warrants to purchase our Class A common stock will, most
likely, exercise their warrants to purchase shares of our Class A common stock
after this registration statement is declared effective. We cannot predict
the
size of future issuances of our Class A common stock or the effect, if any,
that
future issuances and sales of shares of our Class A common stock will have
on
the market price of our Class A common stock. Sales of substantial amounts
of
our Class A common stock, including shares issued in connection with the
exercise of the warrants, or the perception that such sales could occur, may
adversely affect prevailing market prices for our Class A common stock.
Shares
eligible for public sale in the future could decrease the price of our Class
A
common stock and reduce our future ability to raise
capital.
Sales
of
substantial amounts of our Class A common stock in the public market could
decrease the prevailing market price of our Class A common stock, which would
have an adverse effect on our ability to raise equity capital in the future.
We
do not intend to pay dividends.
We
have
never declared or paid any cash dividends on our Class A common stock. We
currently intend to retain future earnings, if any, to finance operations and
expand our business and, therefore, do not expect to pay any dividends in the
foreseeable future.
USE
OF PROCEEDS
We
will
not receive any proceeds from the resale of the shares of Class A common stock
by the selling stockholders pursuant to this prospectus. All of the proceeds
will be payable solely to the selling stockholders. We will, however, receive
the proceeds from the exercise of the warrants issued to the selling
stockholders if and when they are exercised. If all of the warrants are
exercised, we may receive up to $1,371,464. We anticipate that the net proceeds
from the exercise of the warrants would be used to pay down existing debt,
working capital and general corporate purposes.
The
selling stockholders will pay any expenses customarily borne by selling
stockholders (including underwriting discounts, commissions and fees and
expenses of counsel to the extent not required to be paid by us). We will bear
all other costs, fees and expenses incurred in effecting the registration of
the
shares covered by this prospectus, including, but not limited to, all
registration and filing fees, listing fees and expenses of our counsel and
our
accountants.
SELLING
STOCKHOLDERS
We
have
agreed to file a registration statement covering the shares of Class A common
stock issued and issuable pursuant to the private placement transaction. The
shares of Class A common stock being offered by the selling stockholders include
those shares of Class A common stock issuable upon exercise of the warrants.
For
additional information regarding the issuance of those warrants, see “Prospectus
Summary — The Private Placement” above. We have agreed to file a registration
statement covering the shares Class A common stock in order to permit the
selling stockholders to offer the shares for resale from time to time. The
selling stockholders include our CFO who is also a member of our board of
directors, and our CTO. In addition, Potomac Capital Management LLC, an
affiliate of Potomac Capital Partners LP, Potomac Capital International Ltd.
and
Pleiades Investment Partners-R, LP, beneficially owned more than 5% of our
Class
A common stock prior to the offering. The other selling stockholders have not
had any material relationship with us within the past three years.
In
accordance with the terms of the registration rights agreements with the selling
stockholders, this prospectus generally covers the resale of 100% of the sum
of
(i) the number of shares of Class A common stock acquired in the private
placement and owned as of the trading day immediately preceding the date the
registration statement is initially filed with the SEC and (ii) the number
of shares of Class A common stock issuable upon exercise of the warrants
acquired in the private placement as of the trading day immediately preceding
the date the registration statement is initially filed with the SEC. Because
the
exercise price of the warrants may be adjusted, the number of shares that will
actually be issued may be more than the number of shares being offered by this
prospectus.
The
term
“selling stockholders” includes the stockholders listed below and their
respective transferees, assignees, pledgees, donees or other
successors-in-interest. The table below lists the selling stockholders and
other
information regarding the beneficial ownership of the shares of Class A common
stock by each of the selling stockholders. The second column lists the number
of
shares of Class A common stock beneficially owned by each selling stockholder
prior to the offering. The third column lists the number of shares of Class
A
common stock being offered by this prospectus by the selling stockholders,
assuming exercise of the warrants held by the selling stockholders on that
date
immediately preceding the offering, without regard to any limitations on
exercise. The fourth column lists the number of shares of Class A common stock
and percentages of outstanding Class A common stock to be beneficially owned
by
the selling stockholders after the sale of all of the Class A common stock
offered by the selling stockholders pursuant to this offering and assumes the
sale of all of the shares offered by the selling stockholders pursuant to this
prospectus.
| |
|
Number of
Shares
Beneficially
Owned Prior
to the Offering
(1)
|
|
Maximum
Number of Shares
to be Sold
Pursuant to this
Prospectus (2)
|
|
Number of Shares to
be Beneficially Owned
After the Offering
|
|
|
Name of Selling Stockholders
|
|
#
|
|
#
|
|
#
|
|
% (3)
|
|
|
Potomac
Capital Partners, LP (4)
|
|
|
1,631,863
|
|
|
1,035,095
|
(5)
|
|
596,768
|
|
|
2.49
|
|
|
Pleiades
Investment Partners-R, LP (4)
|
|
|
1,152,715
|
|
|
731,335
|
(6)
|
|
421,380
|
|
|
1.76
|
|
|
Potomac
Capital International Ltd (4)
|
|
|
1,143,340
|
|
|
733,570
|
(7)
|
|
409,770
|
|
|
1.71
|
|
|
Neal
Goldman IRA (8)
|
|
|
375,000
|
|
|
375,000
|
(9)
|
|
0
|
|
|
-
|
|
|
Insiders
Trend Fund (10)
|
|
|
125,000
|
|
|
125,000
|
(11)
|
|
0
|
|
|
-
|
|
|
Northern
Valley Partners (12)
|
|
|
83,332
|
|
|
83,332
|
(13)
|
|
0
|
|
|
-
|
|
|
Sylvia
Potter Family LTD Partnership (12)
|
|
|
41,666
|
|
|
41,666
|
(14)
|
|
0
|
|
|
-
|
|
|
Needham
Contrarian (QP) Fund, LP (15)
|
|
|
300,000
|
|
|
300,000
|
(16)
|
|
0
|
|
|
-
|
|
|
Needham
Contrarian Fund, LP (15)
|
|
|
116,666
|
|
|
116,666
|
(17)
|
|
0
|
|
|
-
|
|
|
Robin
F. Risser, CFO & Director
|
|
|
1,040,833
|
(18)
|
|
62,500
|
(19)
|
|
978,333
|
(18)
|
|
4.08
|
|
|
Steven
Williamson, CTO
|
|
|
1,984,167
|
(20)
|
|
102,500
|
(21)
|
|
1,881,667
|
(20)
|
|
7.85
|
|
(1) Represents
number of shares owned by the selling stockholder as of November 26,
2007.
(2) The
number of shares of Class A common stock to be sold by the selling stockholders
is based on 100% of the number of shares of Class A common stock sold to the
selling stockholders in the private placement and upon exercise of the warrants
acquired in the private placement.
(3) Based
on
23,977,678 shares of Class A Common Stock outstanding on November 26,
2007.
(4) Potomac
Capital Partners, LP, Pleiades Investment Partners-R LP and Potomac Capital
International, Ltd and are affiliated entities controlled by Potomac Capital
Management LLC. Mr. Paul J. Solit is the managing member of Potomac Capital
Management and has the voting and dispositive power over such shares owned
by
these entities. Mr. Solit disclaims beneficial ownership of the shares
owned by Potomac Capital Partners, LP, Pleiades Investment Partners-R LP and
Potomac Capital International, Ltd.
(5) Includes
207,019 shares of Class A common stock underlying warrants.
(6) Includes
146,267 shares of Class A common stock underlying warrants.
(7) Includes
146,714 shares of Class A common stock underlying warrants.
(8) Neal
Goldman has voting control and investment discretion over securities held by
Neal Goldman IRA. This amount does not include 50,000 shares of our Class A
common stock which Mr. Goldman owns directly.
(9) Includes
75,000 shares of Class A common stock underlying warrants.
(10) Anthony
Marchese has voting control and investment discretion over securities held
by
Insiders Trend Fund LP. Mr. Marchese disclaims beneficial ownership of the
Class
A common stock held by Insiders Trend Fund LP.
(11) Includes
25,000 shares of Class A common stock underlying warrants.
(12) Michael
Potter has voting control and investment discretion over securities held by
Northern Valley Partners, LLC and Sylvia Potter Family LTD Partnership. Mr.
Potter disclaims beneficial ownership of the Class A common stock held by
Northern Valley Partners, LLC and Sylvia Potter Family LTD
Partnership.
(13) Includes
16,666 shares of Class A common stock underlying warrants.
(14) Includes
8,333 shares of Class A common stock underlying warrants.
(15) The
General Partner of each of Needham Contrarian (QP) Fund, L.P. and Needham
Contrarian Fund, L.P. is Needham Investment Management, LLC. George A. Needham
and James K. Kloppenburg, as members of this general partner, have voting
control and investment discretion over the investment. Messrs. Needham and
Kloppenburg each disclaim beneficial ownership of the shares owned by Needham
Contrarian (QP) Fund, L.P. and Needham Contrarian Fund, L.P except to the extent
that each maintains a pecuniary interest in such funds.
(16) Includes
60,000 shares of Class A common stock underlying warrants.
(17) Includes
23,333 shares of Class A common stock underlying warrants.
(18) Includes
shares underlying options which become exercisable within 60 days of November
26, 2007.
(19) Includes
12,500 shares of Class A common stock underlying warrants.
(20) Includes
shares underlying options which become exercisable within 60 days of November
26, 2007.
(21) Includes
20,500 shares of Class A common stock underlying warrants.
PLAN
OF DISTRIBUTION
The
selling shareholders may sell all or a portion of the shares of Common Stock
beneficially owned by them and offered hereby from time to time directly or
through one or more underwriters, broker-dealers or agents. If the shares of
Common Stock are sold through underwriters or broker-dealers, the selling
shareholders will be responsible for underwriting discounts or commissions
or
agent's commissions. The shares of Common Stock may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale, or at negotiated prices.
To the extent permitted by applicable law, these sales may be effected in
transactions, which may involve crosses or block transactions,
| |
§
|
on
any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of
sale;
|
| |
§
|
in
the over-the-counter market;
|
| |
§
|
in
transactions otherwise than on these exchanges or systems or in the
over-the- counter market;
|
| |
§
|
through
the writing of options, whether such options are listed on an options
exchange or otherwise;
|
| |
§
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
| |
§
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
| |
§
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
| |
§
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| |
§
|
privately
negotiated transactions;
|
| |
§
|
sales
pursuant to Rule 144;
|
| |
§
|
broker-dealers
may agree with the selling security holders to sell a specified number
of
such shares at a stipulated price per
share;
|
| |
§
|
a
combination of any such methods of sale;
and
|
| |
§
|
any
other method permitted pursuant to applicable
law.
|
If
the
selling shareholders effect such transactions by selling shares of Common Stock
to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts,
concessions or commissions from the selling shareholders or commissions from
purchasers of the shares of Common Stock for whom they may act as agent or
to
whom they may sell as principal (which discounts, concessions or commissions
as
to particular underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). In connection with sales
of the shares of Common Stock or otherwise, to the extent permitted by
applicable law, the selling shareholders may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of the shares
of
Common Stock in the course of hedging in positions they assume. To the extent
permitted by applicable law, the selling shareholders may also sell shares
of
Common Stock short and deliver shares of Common Stock covered by this prospectus
to close out short positions and to return borrowed shares in connection with
such short sales. The selling shareholders may also loan or pledge shares
of Common Stock to broker-dealers that in turn may sell such
shares.
The
selling shareholders may pledge or grant a security interest in some or all
of
the warrants, or shares of Common Stock owned by them and, if they default
in
the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of Common Stock from time to time pursuant to
this
prospectus or any amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933, as
amended, amending, if necessary, the list of selling shareholders to include
the
pledgee, transferee or other successors in interest as selling shareholders
under this prospectus. The selling shareholders also may transfer and
donate the shares of Common Stock in other circumstances in which case the
transferees, donees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus.
The
selling shareholders and any broker-dealer participating in the distribution
of
the shares of Common Stock may be deemed to be “underwriters” within the meaning
of the Securities Act, and any commission paid, or any discounts or concessions
allowed to, any such broker-dealer may be deemed to be underwriting commissions
or discounts under the Securities Act. At the time a particular offering
of the shares of Common Stock is made, a prospectus supplement, if required,
will be distributed which will set forth the aggregate amount of shares of
Common Stock being offered and the terms of the offering, including the name
or
names of any broker-dealers or agents, any discounts, commissions and other
terms constituting compensation from the selling shareholders and any discounts,
commissions or concessions allowed or reallowed or paid to
broker-dealers.
Under
the
securities laws of some states, the shares of Common Stock may be sold in such
states only through registered or licensed brokers or dealers. In
addition, in some states the shares of Common Stock may not be sold unless
such
shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied
with.
There
can
be no assurance that any selling shareholder will sell any or all of the shares
of Common Stock registered pursuant to the shelf registration statement, of
which this prospectus forms a part.
The
selling shareholders and any other person participating in such distribution
will be subject to applicable provisions of the Securities Exchange Act of
1934,
as amended, and the rules and regulations thereunder, including, without
limitation, Regulation M of the Exchange Act, which may limit the timing of
purchases and sales of any of the shares of Common Stock by the selling
shareholders and any other participating person. Regulation M may also
restrict the ability of any person engaged in the distribution of the shares
of
Common Stock to engage in market-making activities with respect to the shares
of
Common Stock. All of the foregoing may affect the marketability of the
shares of Common Stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of Common Stock.
We
will
pay all expenses of the registration of the shares of Common Stock pursuant
to
the registration rights agreement, estimated to be $23,700.50 in total,
including, without limitation, Securities and Exchange Commission filing fees
and expenses of compliance with state securities or “blue sky” laws; provided,
however, that a selling shareholder will pay all underwriting discounts and
selling commissions, if any. We will indemnify the selling shareholders
against liabilities, including some liabilities under the Securities Act, in
accordance with the registration rights agreements, or the selling shareholders
will be entitled to contribution. We may be indemnified by the selling
shareholders against civil liabilities, including liabilities under the
Securities Act, that may arise from any written information furnished to us
by
the selling shareholder specifically for use in this prospectus, in accordance
with the related registration rights agreements, or we may be entitled to
contribution.
Once
sold
under the shelf registration statement, of which this prospectus forms a part,
the shares of Common Stock will be freely tradable in the hands of persons
other
than our affiliates.
DESCRIPTION
OF SECURITIES OF THE REGISTRANT
See
the
description listed under “Prospectus Summary — Private Placement”
above.
LEGAL
MATTERS
Dornbush
Schaeffer Strongin & Venaglia, LLP, New York, New York, will pass on certain
legal matters in connection with the offering, including the validity of the
issuance of the shares being offered hereby.
EXPERTS
The
consolidated financial statements incorporated in this prospectus by reference
from our Annual Report on Form 10-K for the year ended March 31, 2007 have
been
audited by Farber & Hass LLP, an independent registered public accounting
firm, as stated in its report, which is incorporated herein by reference, and
have been so incorporated in reliance upon the report of such firm given upon
its authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
AND
INCORPORATION BY REFERENCE
We
file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any public offering document we file,
including a copy of the registration statement on Form S-3 of which this
prospectus is a part, without charge at the SEC's Public Reference Room, 100 F
Street, N.E., Washington, D.C. 20549. You can also request copies of all or
any
portion of these documents by writing the Public Reference Section and paying
certain prescribed fees. Please call the SEC at 1-800-SEC-0330 for further
information on the Public Reference Room. Additionally, the SEC maintains an
internet site that contains reports, proxies and information statements and
other information regarding electronic filers and these documents are available
to the public from the SEC's web site at http://www.sec.gov.
In
addition, our website is www.advancedphotonix.com.
The
SEC
allows us to “incorporate by reference” in this prospectus the information we
file with the SEC. This means that we are disclosing important information
to
you by referring to other documents. The information incorporated by reference
is considered to be part of this prospectus, except for any information
superceded by information contained directly in this prospectus. Information
that we file later with the SEC under the Exchange Act will automatically update
information in this prospectus. In all cases, you should rely on the later
information over different information included in this prospectus. We
incorporate by reference the documents listed below and any future filings
made
with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until
this offering is completed:
| |
§
|
Annual
Report on Form 10-K for the fiscal year ended March 31,
2007;
|
| |
§
|
Proxy
Statement relating to our 2007 Annual Meeting of Stockholders filed
June 16, 2007 on
Form 14A;
|
| |
§
|
Current
Reports on Form 8-K, filed on November 15, 2007, September 19, 2007,
September 7, 2007, August 13, 2007 and July 20,
2007;
|
| |
§
|
Quarterly
Reports on Form 10-Q for the quarter ended June 29, 2007 and
September 28, 2007; and
|
| |
§
|
The
description of our Class A common stock contained in our Registration
Statement on Form 8-A dated January 16, 1991 filed under the Exchange
Act,
including any amendments or reports filed for the purposes of updating
such description.
|
You
may
request a copy of these filings, or any other documents or other information
referred to in, or incorporated by reference in, this prospectus, at no cost,
by
writing or calling us at the following address or telephone number:
Advanced
Photonix, Inc. 2925 Boardwalk, Ann Arbor, Michigan 48104
Attention: Secretary, (734) 864-5600.
Exhibits
to any documents incorporated by reference in this prospectus will not be sent,
unless those exhibits have been specifically referenced in this
prospectus.